EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2014 – 041
PARTIES
Brian Buggle
(Represented by Mary Paul Guinness, BL instructed by O’Mara Geraghty McCourt Solicitors)
V
City of Dublin VEC
Date of issue: 11 June 2014
File reference: EE/2011/701
Headnotes: Employment Equality Acts, 1998-2011 - sections 6, 8 – age - employment status – access to employment - prima facie case - burden of proof - objective justification – EU Directive 2000/78/EC.
1. DISPUTE
This dispute involves a claim by Mr. Brian Buggle (hereafter “the complainant”) that he was (i) discriminated against by City of Dublin VEC (hereafter “the respondent”) in respect of his age in relation to access to employment, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts by not being shortlisted for interview for the position of part-time teacher in health and safety with the respondent.
2. BACKGROUND
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 5 October 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Valerie Murtagh, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 15 January 2014, the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 4 March 2014. Final supplementary documentation was received by the Tribunal on 26 May 2014.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant is a teacher in the field of occupational health and safety. The complainant gained a number of qualifications in the area of occupational health and safety and was employed by the respondent as a teacher for a period of 9 years from in or around 2002 until 2011. The complainant reached the compulsory retirement age in 2011. On retirement, the complainant informed the respondent of his desire to work part-time. Following his retirement, the complainant applied and had his name placed on the respondent’s “teacher contract” list in mid-2011. In August 2011, the complainant applied for a position of part-time teacher (10 hours per week) in health and safety with the respondent. The complainant was informed by letter dated 5 September 2011 that he had not been shortlisted for interview. The complainant wrote to the respondent by e-mail of 6 September 2011 requesting details as to why he had not been shortlisted for interview. The respondent replied by letter of 12 September 2011 enclosing a copy of its letter of 5 September 2011 but not providing reasons why the complainant had not been shortlisted. The complainant submits that the respondent is under instruction from the Department of Education to hire newly qualified teachers over retired teachers and that, while he possessed all the relevant qualifications and experience, he was denied the chance to interview for the position simply due to his age in clear breach of the legislation and also in breach of Council Directive 2000/78/EC.
3.2 The complainant states that the person who was successful at interview had just qualified from Kevin Street College and had no work experience. The complainant understands that health and safety was not a subject he studied as part of his course. The complainant also submits that both parents of the successful candidate already worked as teachers in the College and were employed by the respondent. The complainant submits that the Departmental circular provides that where efforts to secure someone not retired who has the qualifications suitable to the post are unsuccessful, then a retired appropriately qualified person can be employed. The complainant contends that in the instant case, it is clear that notwithstanding the fact that the complainant had all the necessary qualifications, he was not even shortlisted for interview in circumstances where someone who did not have qualifications suitable to the post was ultimately employed. In addition, the complainant submits that the respondent could not have known prior to interviewing the candidates that they would find an appropriately qualified teacher who was not retired and accordingly the complainant contends that he has been discriminated against in relation to access to employment because of his age by not being shortlisted for interview.
3.3 The complainant submits that the documentation provided by the respondent in its supplemental submission confirms the evidence proffered by the respondent at the hearing that the sole reason for not shortlisting the complainant was that he was retired. The complainant argues that no assessment was carried out of his qualifications vis a vis other candidates and he was simply marked “Retired” and “No” as a reason for not calling him for interview. The complainant submits that no evidence has been provided either at the hearing or in the supplementary submission by the respondent of the assessment carried out in shortlisting the candidates for interview. The complainant contends that it is noteworthy that candidates F and H were shortlisted and called to interview notwithstanding that neither candidate was registered with the Teaching Council which was a condition of appointment as set out in the Memorandum of Information on Teaching Appointments. The complainant submits that the manner in which the respondent implemented the Department of Education circular is discriminatory on age grounds. The complainant also submits that the personnel involved in shortlisting the candidates for interview did not attend the hearing and consequently there was no opportunity to cross examine the respondent’s evidence in this regard. The complainant cites the case of Dominica Peterson v Berunfungsausschuss fur Zahnarzte fur den Bezirk Westfalen-Lippe Case C-341/08 in support of his claim of discrimination on grounds of age.
SUMMARY OF RESPONDENT’S CASE
4.1 The respondent submits that it is a large and complex organisation providing a wide range of services to people in Dublin City and it employs approximately 4000 staff. Teaching vacancies in mainstream courses are advertised in the national press and candidates who meet the selection criteria are called to interview. The complainant was employed in the night school of one of its Colleges of Further Education from September 1990 to May 1993 and as a part-time teacher in another College from January 2003. On 28 July, 2003, the complainant answered an advertisement for the post of eligible part-time teacher of health, safety and welfare at work in B College of Further Education. He was successful at interview and took up the post on 17 September 2003. The complainant taught under a contract of indefinite duration from 29 August 2007 up to his mandatory retirement on 31 August 2011. The respondent submits that the complainant was well regarded as can be demonstrated by a reference provided by the College Principal in July 2003. The respondent contends that the decision not to call the complainant to interview was based on a circular from the Principal Officer, Schools Division of the Department of Education and Science. This circular which was issued by the Minister stated “the purpose of this circular is to ensure, as far as practicable, that people appointed to teach are registered teachers with qualifications appropriate to the sector and suitable to the post for which they are employed and that unemployed teachers are offered employment in preference to those who have retired. It is applicable to all appointments made on or after 1 September 2011.” The circular further states that “where all efforts to secure an appropriately qualified registered teacher who is not retired fail, the school may employ a retired appropriately qualified registered teacher. If none are available, it may move on to employ a registered teacher who is not appropriately qualified, giving preference wherever possible to one who is not retired. Finally, if no registered teacher can be found, it may for very limited periods of time employ an unregistered person.” The respondent states that the Minister of Education and teacher representatives were concerned that due to changes to teacher allocations, it was inevitable that more teachers compared to recent years would be seeking work and that in those circumstances, those teachers should be given priority over persons who had retired. The respondent argues that on this basis, the selection board did not shortlist the complainant and he was not called for interview.
4.2 The respondent submits that the concept of objective justification runs through the Council Directive 2000/78/EC and the transposition of the Directive into domestic law including the Employment Equality Acts and the Part Time and Fixed Term Acts of 2001 & 2003 respectively. The respondent submits that in its opening statements, the Directive states:
(14)- “This Directive shall be without prejudice to national provisions laying down retirement age”.
(23) – “In very limited circumstances, a difference in treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation, when the objective is legitimate and the requirement is proportionate”..
(25) – “The prohibition of age discrimination is an essential part of meeting the aims set out in the employment guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational objectives and discrimination that must be prohibited.”
The respondent submits that its decision not to shortlist the complainant for interview was not based on any discriminatory practice rather that it was complying with the wishes of the Minister of Education that newly qualified teachers are given priority over those who were retired. The respondent confirmed that it employs Mr. and Ms. O but cannot determine if they are the parents of the successful applicant as it does not gather information that indicates family relationships.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of age, in terms of section 6(2)(f) of the Employment Equality Acts and contrary to section 8 of those Acts, in relation to access to employment by not being shortlisted for interview for the post of part-time teacher with the respondent. In reaching my Decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule".
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2011 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2)(f) of the Acts defines the discriminatory ground of age as follows – “as between any 2 persons, ... that they are of different ages". Section 8(5) states that “an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee – (b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different.” For a complaint of discrimination under the Employment Equality Acts to be made out, the complainant must demonstrate a nexus between the alleged discriminatory treatment and his age. On examination of all the evidence, the position is that the respondent submits that its decision not to shortlist the complainant for interview was not based on any discriminatory practice rather that it was complying with the wishes of the Minister of Education and teaching unions that newly qualified teachers are given priority over those who are retired. The respondent argues that the Minister of Education and teacher representatives were concerned that due to changes to teacher allocations, it was inevitable that more teachers compared to recent years would be seeking work and that in such circumstances, those teachers should be given priority over those who are retired.
5.3 The complainant’s representative contends that there was a blanket ban on any person who was retired and rather than carry out a comprehensive assessment on all candidates applying, newly qualified teachers were given preferential treatment over retirees and as a result, the complainant was discriminated against on grounds of his age. The complainant’s representative submits that no assessment was carried out of the complainant’s qualifications vis a vis other candidates and that he was simply marked “Retired” and “No” as a reason for not calling him for interview. The respondent stated that 10 persons applied for the post and 2 candidates were shortlisted on the basis of their applications, one of which had an engineering degree which encompassed a module on health and safety at work and the other candidate had a Bachelor of Science degree. The respondent submits that another factor in the selection process was that the person hired would be there for the long haul while in the case of the complainant, only a fixed term contract could be given to him of short-term duration.
5.4 On evaluation of all the evidence, I find that the complainant has established a prima facie case of discriminatory treatment on grounds of age and the burden of proof shifts to the respondent to establish that there was objective justification to demonstrate the difference in treatment on grounds of age. The respondent submits that its decision to not shortlist the complainant for interview was not based on any discriminatory practice rather that it was complying with the wishes of the Minister of Education that newly qualified teachers are given priority over those who were retired. Accordingly, the respondent submits that its actions in this regard are in accordance with Council Directive 2000/78/EC in relation to Article 6(1) where it states that different treatment on grounds of age is not discriminatory if it is objectively and reasonably justified by a legitimate aim by reference to, inter alia, legitimate employment policy, labour market and vocational training objectives and if the means of achieving the aims are appropriate and necessary.
5.5 Having examined the jurisprudence of the European Court of Justice, I note that the ECJ has indicated a number of potentially legitimate aims; for example in Palacios de la Villa v Cortefiel Services SA (Case C411/11) creating opportunities in the labour market for jobseekers and in Fuchs v Lord Hessen (C-160/10) and Hornfeldt v Meddeland (C-141/11) creating a balanced workforce and promoting the recruitment of younger workers. In the instant case, the Departmental circular states that “the purpose of this circular is to ensure, as far as practicable, that people appointed to teach are registered teachers with qualifications appropriate to the sector and suitable to the post for which they are employed and that unemployed teachers are offered employment in preference to those who have retired. It is applicable to all appointments made on or after 1 September 2011.” The circular further states that “where all efforts to secure an appropriately qualified registered teacher who is not retired fail, the school may employ a retired appropriately qualified registered teacher. If none are available, it may move on to employ a registered teacher who is not appropriately qualified, giving preference wherever possible to one who is not retired. Finally, if no registered teacher can be found, it may for very limited periods of time employ an unregistered person.” In examination of all the evidence in this case, I am satisfied that the Departmental Circular complies with the concept of objective justification and is in harmony with Council Directive 2000/78/EC particularly in relation to the ECJ decision in Palacios de la Villa v Cortefiel Services SA in the context of creating opportunities in the labour market for jobseekers. However, I find that the manner in which the respondent applied the terms of the Circular to the complainant is a departure from normal procedure and did facilitate inadvertent and unconscious discriminatory treatment.
5.6 I am satisfied, given the totality of the evidence that the persons who carried out the assessment of candidates (who I should add did not attend on the day of the hearing to give testimony and be in a position to be cross examined) made a subjective evaluation on the candidates applying which resulted in the complainant being discriminated against at the very first hurdle. In that regard, the respondent stated that, as the complainant was retired, he was not considered for the shortlisting for interview stage. In addition, I note that neither of the two candidates shortlisted for interview were registered with the Teaching Council at the time they applied for the post in question as they had just qualified from College. I also note from the documentation submitted, registration with the Teaching Council was a condition of appointment as set out in the Memorandum of Information on Teaching Appointments. The respondent, in a supplemental submission, stated that in 2011/2012, applicants were allowed the academic year in which to attain Teaching Council Registration. On examination of the totality of the evidence, I am satisfied that the complainant was discriminated against on grounds of his age in relation to the manner in which the respondent applied the terms of the Departmental Circular to him. The two candidates shortlisted for interview, who had just graduated from College, were given more favourable treatment, in that, they were not registered teachers. The successful appointee was allowed the academic year in which to attain Teaching Council Registration even though this candidate was required to be registered. Therefore, I am satisfied that the two candidates shortlisted for interview did not satisfy the conditions for appointment laid down by the respondent. I also note that, on the day of the hearing, the persons responsible for shortlisting the candidates for interview and making the decision as to the successful appointee were not present and there was no opportunity to question them on same. The representative of the respondent at the hearing confirmed that the reason the complainant was not shortlisted or considered for the post was that he was a retiree.
5.7 I am cognisant of the decision of the Labour Court in Co. Louth VEC v Johnson where it states that… “it is not the responsibility of this Court to decide who was the most meritorious candidate for a position. The function of the Court is to determine whether the gender status or age of the complainant influenced the decision of the employer.” I am satisfied that scant information was given either at the hearing or in written format, when requested, in relation to criteria and job specification for the post in question. On examination of all the documentation and witness testimony, I find that the complainant was discriminated against in not being shortlisted for interview because of his age. I also find that the respondent would only be in a position to make an informed decision as regards an appropriately qualified teacher after undergoing the interview stage of the selection process in order to allow candidates to elaborate on their application and CV. From the evidence gleaned, I am satisfied that there was a ban on retirees being considered for the post in question. On examination of all the evidence, I find that the respondent has failed to rebut the complainant’s prima facie case. The respondent referred to the Department of Education Circular and stated that its aims werelegitimate in relation to providing employment to newly qualified teachers. It also justified its actions on the basis that it was in compliance with national employment policy, labour market and vocational objectives but it provided no detail to substantiate such claims. I am satisfied that the Departmental Circular was misinterpreted by the respondent in so far as it placed no ban on the respondent in recruiting retirees in circumstances where an appropriately qualified and registered teacher did not apply. In the circumstances, I find that the respondent has failed to satisfy me that its actions, insofar as the manner in which it applied the Departmental Circular to the complainant in the instant case can be objectively justified and the complainant is therefore entitled to succeed in his claim.
6. DECISION OF THE EQUALITY OFFICER
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that:
(i) the complainant has established a prima facie case of discrimination on the age ground pursuant to section 6(2) of the Acts and contrary to section 8 of those Acts in relation to not being shortlisted for interview for the post of part-time teacher in health and safety with the respondent.
(ii) the respondent has failed to objectively justify its actions in terms of the Employment Equality Acts and Article 6 of the Framework Directive in the manner in which it applied the Departmental circular to the complainant and therefore, the complainant is entitled to succeed with his claim.
In accordance with my powers under the Act, I order the respondent to pay the complainant compensation in the sum of €8,000 for the distress suffered by him as a result of the discrimination. This amount is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
_____________________
Valerie Murtagh
Equality Officer
11 June, 2014
Decision: DEC-E2014-041